Bullard v. Farrar

33 Ga. 620 | Ga. | 1863

By the Court. —

Lumpkin, C. J., delivering the opinion.

What is this will ? That the estate be kept together for the maintenance and well education of the children of the testator —not that the negroes be kept on the land whereon the testator lived and died. He never mentions either land or negroes, but directs that his estate be kept together, whatever form it might assume. That is, that it be not subdivided amongst His legatees at his death, and thus obviously to effectuate the paramount purpose of the testator, namely: raising and educating his children. Well, it turns out in the course of time, that the estate kept together as the testator left it, under the best management, will no longer support the family — only twenty acres of the land fit for cultivation — and that, in the language of one of the witnesses, not always to be “counted on.”

What is to be done? What course can be pursued but the one adopted by the administrators in this case? Go into a Court of Equity, and ask the direction of the Chancellor tt> advise the parties, and if the proof shows the necessity of intervention, direct the jury to decree that the land be sold and the proceeds be re-invested in better land, or in some other fund, and the negroes be hired out, for the purpose of carrying out the paramount purposes of the testator. And, should it be absolutely necessary, take a part of the corpus of the proceeds to maintain and educate the children. For this is a literal compliance with the language of the will: “ It is also my will that the children shall be raised and well educated” —not from the annual income, profits, or products of his estate, but “from the proceeds of the estate.”

We see no serious difficulty in this case.

Let the judgment be reversed.